Federal judge finds discharge of Margaret Witt was unconstitutional, orders reinstatement

by on September 24, 2010  •  In Constitutional law, Military

U.S. District Judge Ronald Leighton ruled today that the Air Force discharge of Major Margaret Witt under the DADT policy violated her Due Process rights and harmed, rather than helped, unit cohesion and morale. Judge Leighton ordered the Air Force to reinstate Major Witt "as soon as practicable."

The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important governmental interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect…

…Major Margaret Witt was an exemplary officer…Her loss within the squadron resulted in a diminution of the unit's ability to carry out its mission. Good flight nurses are hard to find…

The men and women of the United States military have over the years demonstrated the ability to accept diverse peoples into their ranks and to treat them with the respect necessary to accomplish the mission, whatever that mission might be…The reinstatement of Major Margaret Witt will not erode the proficiency of the United States military…

Judge Leighton's reasoning, reiterated in findings of fact and conclusions of law, poses the latest in a series of challenges for the Obama administration as it simultaneously defends the DADT policy in court and seeks its repeal in Congress. When the Ninth Circuit ruled last year in Witt that the government would be forced to justify DADT discharges on an individualized basis, the Justice Department could have sought review of that decision in the Supreme Court. Instead, then Solicitor General Elena Kagan opted not to seek certiorari, but to send government lawyers back to the trial court in an effort to satisfy the Ninth Circuit's requirement that adverse effects on unit cohesion be proven.

Now that the trial has concluded, the Justice Department faces a much more difficult question about whether to appeal. DoJ could elect to comply with Judge Leighton's order and process Witt for reinstatement – reinstating one soldier is not a big deal.  On the other hand, the Ninth Circuit rule that each challenged discharge be justified could so gum up the military's system that it would come close to shutting down DADT. The justification rule applies only in the geographical area covered by the Ninth Circuit, but that includes California, Arizona, Washington, Oregon, Nevada, Hawaii and Alaska — lots of military bases in those states.

If Justice does appeal this ruling, which the Ninth Circuit is almost certain to affirm, it will also have a much more difficult time of getting a stay of the order until the appeal is completed. Unlike Judge Phillips' ruling in Log Cabin Republicans v. U.S., which runs counter to Ninth Circuit precedent, the Witt ruling is consistent with circuit precedent.

Congrats to the ACLU for a terrific job of litigating this case - 


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